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Misappropriation

The use of a person's name or likeness for commercial purposes without consent is misappropriation. The law protects an individual from being exploited by others for their exclusive benefit. A person's entire name need not be used. If the person could reasonably be identified, the misappropriation claim probably will be valid.¹¹

Use of a photograph to illustrate a newsworthy story is not misappropriation. Even if a photo is used to sell a magazine on a newsstand, courts usually will not consider that a trade or commercial purpose. The line between news and commercial use is not always clear, however, and even photographs used to illustrate an article may create liability for misappropriation if the article is considered to have an overriding commercial purpose.¹²

Notes

11. See, e.g., Wendt v. Host Int'l, 125 F.3d 806 (9th Cir. 1997) (holding that actors from television series could sue owner of airport bars featuring robots displaying likenesses to their characters from the series).

12. See Hoffman v. Capital Cities/ABC, Inc., No. CV 97-3638 (C.D. Cal. Jan. 22, 1999) (ordering magazine to pay $1.5 million in actual damages for publishing actor's electronically altered photograph as part of an article on new spring fashions and authorizing punitive damages in addition to actual damages); see also Solano v. Playgirl, Inc., 292 F.3d 1078 (9th Cir. 2002), cert denied, 123 S. Ct. 557 (2002).

Next section: Invasion of Privacy: Right of publicity.